(bidang kuasa rayuan) rayuan jenayah no: b-05-164-2010 diantara ...

CORAM:
DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA
(BIDANG KUASA RAYUAN)
RAYUAN JENAYAH NO: B-05-164-2010
DIANTARA
MOHD NAKI BIN MOHD YUSUF … PERAYU
DAN
PENDAKWA RAYA … RESPONDEN
(Dalam Mahkamah Tinggi Shah Alam,
Perbicaraan Jenayah No. MT 45-193-2007)
DIANTARA
PENDAKWA RAYA
DAN
MOHD NAKI BIN MOHD YUSUF
(1) SULAIMAN DAUD, JCA
(2) SYED AHMAD HELMY SYED AHMAD, JCA
(2) MOHAMED APANDI ALI, JCA
1

GROUNDS OF JUDGMENT
The appeal herein emanates from the decision of the Shah Alam
High Court in convicting the appellant for the offence of murder under
Section 302 of the Penal Code.
The charge was for the murder of a Pakistani national by the name
of Norshad (holder of Passport No. AB 9613051) and upon conviction
the learned High Court Judge sentenced the appellant to death.
The conviction of the appellant was based on circumstantial
evidence. The narrative of the prosecution’s case which led to the
culpability of the appellant was centred on the evidence of the
appellant’s estranged wife SP18 and his two children SP16 and SP17.
It was the testimony of SP18 that there was a quarrel between her
the appellant and the deceased about a month prior to her lodgement of
a missing person police report on 20.5.2007, which led her to leave their
matrimonial home to stay with her parents in Sungei Besi. On 14.4.2007
the appellant turned up at her parent’s home with his two children SP16
and SP17 leaving them there as he had to leave as something had
happened at the factory.
SP16 and SP17 testified that sometime in April 2007 the deceased
came to their rented house and an argument broke out between the
appellant and the deceased. SP16 saw the appellant hit the deceased
with an iron rod. When they woke up the next day the deceased was
nowhere to be seen.
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Police investigation recovered an iron rod (P22A) and a machete from
the appellant’s house. The iron rod was found to contain some blood
but no DNA profiling was obtained.
The police forensic team collected some samples believed to be
blood from the appellant’s house. The examination and analysis
conducted on a specimen marked A1 obtained from the wall of the
house confirmed that it contained DNA of the deceased.
The other pertinent circumstantial evidence was the testimony of
SP11 an employee of the appellant and the deceased. He testified that
the last time he saw deceased was before 30.4.2007 and when he came
back to work on 4.5.2007 the deceased was nowhere to be found.
SP11 also last saw the appellant on 30.4.3007.
The deceased’s decomposed body was found in a water tank
within the factory on 22.5.2007 by SP2, a police officer who came to the
scene after being informed of a foul smell by SP11. The cause of death
was found by the pathologist SP14 to be head injury or injury to the
brain. The facial bones were smashed and it could be caused by a blunt
object such as a piece of wood or iron rod.
Based on the evidence as presented by the prosecution the
learned trial Judge upon conducting a maximum evaluation thereof was
satisfied that a prima facie case has been established warranting the
calling of the defence of the accused.
The appellant’s defence which was given under oath was a series
of denials - denied that the deceased came to the house on the night in
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question, denied having seen the murder weapon P26C, denied that the
telephone number “sender” Shah, + 60146600244 belonged to him and
sending an SMS in P30 (1 - 7) therefrom, and denied the contents of the
Police Report P46 made by SP18 pertaining to the telephone call from
telephone number 014 - 6600244 made by the appellant to her. The
appellant also testified that the reason behind leaving the two children
SP16 and SP17 with SP18 to work in Johor was not to run away but
because of the threat by SP18 not to come back to the home as long as
the appellant is around.
The learned trial Judge after evaluating the defence against the
totality of the evidence adduced found that the defence was one
anchored on bare denials and afterthought.
In the appeal before us learned Counsel for the appellant
advanced five grounds of appeal as follows:
1. The trial Judge failed to give adequate consideration of
the absence of the appellant’s DNA on the murder
weapon and at the place of incident.
2. The break in the chain of evidence arising from the
failure to conduct investigation on Shah as the sender
of the SMS message to SP18 on the 23.5.2007
through telephone number 0146600244.
3. The error of the trial Judge to evaluate the evidence of
the pathologist SP14 of the possibility of the head’s
detachment from the body through decomposition and
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not through the assault on the head with a blunt object
as testified by the first Investigating Officer.
4. Failure by the trial Judge to consider the motive of
SP18.
5. The trial Judge being the third Judge who presided in
the conduct of the trial was in no position to evaluate
the demeanour of the testimonies of the earlier
witnesses and fully consider the evidence adduced.
On the challenge against the DNA evidence the thrust thereof is
the absence of the DNA profile of the appellant on the deceased’s body
floating in the water tank and the exhibits of the murder weapon.
DNA evidence is now a very potent weapon of forensic science
which is widely used to assist in proof of identity. In the factual matrix
herein the DNA profile of the deceased was recovered and obtained
from the bloodstain on the wall of the appellant’s home. The recovery of
the bloodstain has to be looked against the presence of the deceased’s
body with multiple injuries floating in the water tank which impels the
inference of the appellant’s culpability as the person who caused the
death of the deceased. There does not appear to be any explanation
proffered by the appellant on this aspect of the evidence. An
explanation from the appellant is imperative in the light of the
consistency in the evidence of the pathologist SP14 and the appellant’s
daughter SP16 who perceived with her own eyes the appellant hitting
the deceased with the iron rod - PP v Hanif Basree Abdul
Rahman[2008] 4 CLJ.
5

It should be recalled that the learned Judge’s conclusion was
derived from his evaluation of the circumstantial evidence, wherein it is
trite the guiding element is the cumulative effect of all the evidence
which leads to the irresistible conclusion of the sole culpability of the
appellant in the commission of the crime. We are of the considered view
that the learned trial Judge adhered to the guidelines and applied the
correct principles in evaluation of circumstantial evidence in arriving at
his decision. Accordingly we dismiss the appellant’s challenge on the
first ground aforesaid.
Coming to the second ground, on the failure of the Investigating
Officer to conduct investigation on Shah as the sender of the SMS
message via telephone number 014 - 6600244 to SP18 on the
23.5.2007 we agree with the findings of the learned trial Judge that it
does not affect the core of the prosecution’s case and does not amount
to a break in the chain of evidence.
In concluding that the failure as such is not fatal the learned trial
Judge was impressed with the demeanour of SP18 whom he found was
a reliable witness whose evidence of the telephone number 014 -
6600244 as belonging to her husband (the appellant) was given
spontaneously and was reflected in her police report P46 which was
made as early as 20.5.2007. The learned trial Judge rationalised that
the non-calling of the telecommunication company personnel as a
witness is at best neutral as it is public knowledge that registration does
not prevent the usage of the registered number by others. The fulcrum
of the basis of his finding was the direct testimony of SP18 that the
number was that of the appellant. The challenge on the second ground
must correspondingly in our view, fail.
6

On the third ground of challenge pertaining to the pathologist
evidence of the possibility that the detachment of the head from the body
could be occasioned by decomposition, we are of the considered view
that the challenge is misplaced and is without merits.
A close scrutiny of the pathologist SP14’s evidence shows that the
head injury and the crushed facial bone which led to the trauma on the
brain of the deceased. The injury as such was according to the
pathologist caused by a blunt object like a piece of wood or an iron rod.
The body of the deceased was found in a water laden underground tank
which accelerated the death occasioned by the trauma to the brain.
The aforesaid cogent piece of evidence of the pathologist was
accepted by the trial Judge and we see no grounds to depart.
On the issue of motive, though it is not an element of a murder
charge nevertheless it is a relevant fact to be taken into consideration.
The challenge by the appellant is that the estranged wife SP18 who was
having a love affair with the deceased had the requisite motive to fix up
the appellant with the murder of the deceased. The motive is further
amplified by the threats of SP18 on several occasion to send the
appellant to prison. Hence it is totally unsafe to convict the appellant
without giving adequate consideration to the motive of SP18 which
would have a negative bearing on the element of intention on the part of
the appellant in causing the death of the deceased.
The learned trial Judge addressed his mind to the motive factor.
At page 232 of the Appeal Record he found that the marital relationship
between the appellant and SP18 had broken down occasioned by
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frequent quarrels. Jealousy would invariably envelope the appellant
upon seeing the deceased establishing a close relationship with SP18,
the level of jealously being dependent on the individual capacity to cope.
In the circumstances we are of the view that though the trial Judge did
not direct his mind to the motive of SP18 vis-à-vis the appellant
nevertheless the failure as such does not absolve the appellant from his
culpability. This is because there is overwhelming circumstantial
evidence to attach culpability on the appellant for the murder of the
deceased.
On the final ground of challenge, though it is true that the trial
Judge being the third Judge who presided and continued with the trial
without having the advantage of ascertaining the demeanour of
witnesses whose testimony was recorded by his predecessors
nevertheless we have adopted the approach and the principles
governing appellate intervention as laid down in the Federal Court case
of Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors
[2004] CLJ 309 in that:-
“... the central feature of appellate intervention is to determine whether
or not the trial court had arrived at its decision or finding correctly on
the basis of the relevant law and/or the established evidence. In doing
so the Court of Appeal was perfectly entitled to examine the process of
evaluation of the evidence by the trial Court. ...a Judge who was
required to adjudicate upon a dispute must arrive at his decision on an
issue of fact by assessing, weighing and, for good reasons, either
accepting or rejecting this whole or part of the evidence placed before
him.”
8

On the totality of the evidence presented we see no error on the
part of the learned trial Judge to rely and evaluate the recorded evidence
of his predecessors to arrive at the decision. The adoption of such a
procedure by the learned trial Judge cannot be said to tantamount to
insufficient judicial appreciation of evidence.
The cumulative effect of the evidence of SP16, SP17 and SP18
was more than sufficient evidence to support the findings and conclusion
of the learned trial Judge. The case herein in essence is based on
findings of facts which we have found was not perverse for appellate
intervention. The conviction is safe. The appeal is accordingly
dismissed. Conviction and sentence of the High Court affirmed.
DATUK SYED AHMAD HELMY BIN SYED AHMAD
Judge
Court of Appeal Malaysia
Dated this 28 th May 2012
9

Counsel for the Appellants:
Tetuan Ahmad Nizam & Co.,
Peguambela & Peguamcara
DT-C-7, Le Jardin Deluxe
Jalan Pandan Mewah
Pandan Indah
55100 Kuala Lumpur
Counsel for the Respondent:
Puan Rosidah binti Abu Bakar
Timbalan Pendakwa Raya
Pejabat Timbalan Pendakwa Raya
Unit Pendakwaan Negeri Selangor
Tkt. 4, Podium Utara
Bangunan SSAAS
40512 Shah Alam
Cases referred to in this judgment:
1. PP v Hanif Basree Abdul Rahman[2008] 4 CLJ.
2. Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors
[2004] CLJ 309
10